State courts typically put the child’s interest first in custody suits, but that priority can get lost in Indian Child Welfare Act cases, warns an amicus brief by the American Academy of Adoption Attorneys in Adoptive Couple v. Baby Girl.
The Academy wants the Supreme Court to "clarify that the best interests of the child is the paramount focus of ICWA." The case involves a three-year old, Veronica, who lived with adoptive parents in Charleston, S.C., for more than two years. Last July, the South Carolina Supreme Court granted custody to the girl’s biological father, a Native American who provided no prenatal support and had previously renounced his parental rights.
"Tribal advocates may argue that the tribe’s interest includes the Indian child’s interests; such a position is untrue when a tribe uproots a child firmly bonded to parent figures over extended time periods," counsel of record Jay McCarthy wrote in urging the Court to return Veronica to the South Carolina couple.
Congress enacted ICWA in 1978 to preserve Indian family relationships, but the adoptive couple’s lawyers maintain that the act does not create new custodial rights.
When the Court hears arguments in Adoptive Couple on April 16, it will consider whether ICWA or state law controls and whether a non-custodial parent can invoke the federal act to block an adoption. A divided South Carolina high court acknowledged that state law would have required Veronica to remain with the adoptive couple.
Veronica, whose story has gained significant media attention, was born to a non-Indian mother who refused to marry the biological father, a Cherokee. The man, in turn, surrendered his parental rights via text message and declined to provide financial assistance. The birth mother then decided to put the baby up for adoption.
"This is a woman, who, with no money, all alone in the world, tried to do what’s best for the child and believed she was doing it the proper way," said McCarthy, an Arizona-based lawyer who chairs the Academy’s ICWA committee.
The biological father, who was serving on a military base in Oklahoma, did not attempt to contact Veronica in the months after she was born. The adoptive couple—a developmental psychologist and a Boeing engineer—provided prenatal support and were present at Veronica’s birth.
Though the South Carolina court called the adoptive couple "ideal parents," it reasoned that ICWA confers rights to unwed biological fathers that state law does not. It found the adoption unenforceable because the biological father never gave valid consent and the adoptive couple did not provide "rehabilitative programs designed to prevent the breakup" of an Indian family.
McCarthy argues that any substantive protections ICWA may provide are unavailable here because the biological father was not a "parent" as the act defines it. He explains that a long line of Supreme Court decisions and legislative history show that the term does not have a more expansive meaning under ICWA than it does under state law.
States use the "biology plus" standard in custody cases, meaning DNA alone does not grant an absent father the right to withhold consent. Instead, the man typically must assume the responsibilities of parenting and, in some states, may need to file with a putative father registry or abide by prenatal abandonment laws.
If the Court upholds South Carolina’s ruling, it would throw into disarray what "40 years of legislation and jurisprudence mean," McCarthy said.
Such a decision also could deter parties from seeking adoption, increase the number of custody battles, "trample the rights of single mothers" and expose them to domestic violence, McCarthy warned.
"These women planning adoption are in very difficult situations," McCarthy said. "Emotionally, financially, many are at risk of harm."
Mary Beck, director of a domestic violence clinic at the University of Missouri School of Law, collaborated with McCarthy on the brief. McCarthy first practiced in Missouri and Alaska and now has a two-person firm, McCarthy Weston, in Flagstaff, Ariz. He has worked on ICWA cases in more than 30 states and has represented many birth mothers who want to give their child up for adoption.
"They’re my heroes," McCarthy said. "They’re trying to decide a child’s future in incredibly difficult situations."
Jamie Schuman is a freelance writer and third-year student at The George Washington University Law School.